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Cite as: [2006] CSIH 15, [2006] ScotCS CSIH_15

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Macfadyen

Lord Drummond Young

Lord Marnoch

[2006] CSIH 15

A1797/01

OPINION OF THE COURT

delivered by LORD MARNOCH

RECLAIMING MOTION

in the cause

ANGUS BELL and ANOTHER

Pursuers and Respondents;

against

MRS. FLORA BROWN CAMPBELL or FIDDES

Defender and Appellant:

_______

Act: McLean; Drummond Miller (Stirling & Gilmour, Helensburgh) (Pursuers and Respondents)

Alt: Johnston, Q.C.; Brodies (Defender and Appellant)

28 February 2006

[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary in an action of reduction whereby, inter alia, he reduced a Sheriff Court decree pronounced in absence on 4 February 1993. The salient part of that interlocutor reads as follows:

"The Sheriff, in absence, Found and Declared that the Pursuer [the present defender] has a Servitude of Access, both vehicular and pedestrian, over the road leading from the main road to her croft, as shown on the plan annexed and executed as relative to Disposition by Laggan Estate Trustees in favour of William Campbell, dated Eleventh and Fourteenth, and recorded in the Division of the General Register of Sasines applicable to the County of Argyll on Twenty Fifth, all January Nineteen Hundred and Eighty ... ".

[2 ] The Disposition and accompanying plan is 13/5 of process wherefrom it is clear that the defender's croft, which is situated at Glenegedale Lots, by Port Ellen in Islay, was disponed to her with, inter alia,

"right of access for vehicular and pedestrian traffic to and from the subjects ... from and to the ... public road along the track marked in blue on the ... plan ... ".

[3 ] The track marked in blue passes through the first pursuer's croft and he and his wife were the defenders in the Sheriff Court action which, in addition to the conclusion for reduction, had ancillary conclusions for interdict. Effect was given to these ancillary conclusions in the interlocutor in question but it was common ground before the Lord Ordinary that, if what I have described as the "salient" part of the interlocutor were to be reduced, no part of the remainder could survive. In the present process there is likewise an ancillary conclusion for interdict but, again, it is common ground that, having granted decree of reduction, the Lord Ordinary had no option but to grant interdict in the terms sought.

[4 ] The Lord Ordinary has held, and there is now no dispute, that the pursuers could in no way be blamed for the failure to defend the Sheriff Court action and, accordingly, the only live question is or, at least, should be whether there was or was not a stateable defence which went unheard.

[5 ] Unfortunately, as the present action proceeded through the court, this simple question seems to have been lost sight of, with the result that the action has now been in court for more than 10 years, evidence was taken on commission on two separate occasions, the evidence before the Lord Ordinary occupied 10 days, the submissions of counsel occupied a further 4 days and the reclaiming motion before us was set down for 4 days of which, however, only 2 were in the event required.

As the Lord Ordinary tells us, "Many matters were explored in the days of the proof" and these seem to have included possible variations of the alleged right of way and the vexed subject of implied grants of servitude rights although it is fair to say that there is very little, if anything, in the pleadings relative to either of these concepts. Moreover, it transpired that the only real issue which the parties wished in the end to have decided was whether the right of access, as presently exercisable, had to be taken via a ford (in accordance with the Disposition plan) or via a bridge built over a stream running through the first pursuer's property, the bridge having been built by the first pursuer, qua tenant, in 1974. No doubt encouraged by counsel the Lord Ordinary did his best to answer that question but the sad truth is that, as was eventually made clear before us, the present process, having no declaratory conclusions of any sort, was, quite simply, not apt for deciding that matter.

[6 ] In the result, and without finding it necessary to enter on much of the detail which has bedevilled this action to date, we have little difficulty in reaching the view that there was a stateable defence to the Sheriff Court action and that the Lord Ordinary, albeit on reasoning which perhaps went further than necessary, reached the right conclusion. We say that for three main reasons, all of which were urged on us by Mr. McLean, advocate, for the respondents.

[7 ] In the first place, the proof disclosed that there was real doubt whether, even as at 1993 (the date from which the Sheriff Court interlocutor must "speak"), there was any right of access beyond the aforesaid stream or burn on the line shown in the defender's title plan. The line in question was established at the proof as having been a tracing of some form of track which was shown on the 1899 Ordnance Survey, but the evidence of the first pursuer, whom the Lord Ordinary found both credible and reliable, was that at least in the 1960s the pedestrian route beyond the ford could take any one of a number of lines dependent upon what crops were in the first pursuer's fields. Although it is theoretically possible that by 1993 the pedestrian access route had crystallised, albeit coincidentally, on the line shown in the title plan, no evidence was led to that effect. The Lord Ordinary's finding on this matter (at para. 114 of his Opinion) is as follows:

"Notwithstanding the conveyancing maps referred to before which are only tracings and imprecise, there was no road between the crofts before 1983, save a track which was only suitable for pedestrians. The fields to the east of Bells' croft were kept in crops at that time. The precise position of the track has not been proved."

In this connection, it has to be borne in mind that in 1980 the Laggan Estate Trustees could only confer on the defender such access rights as they had reserved to themselves when disponing the first pursuer's croft to him the previous year. That Disposition is 13/4 of process wherein there was reserved to the Trustees "all existing (our emphasis) rights and ways over that portion of the subjects hereinbefore disponed".

[8 ] In the second place, the proof disclosed that there was even more doubt whether, as at 1993, there was any right of vehicular access to the defender's croft furth of the line of the burn, let alone on the line stipulated in the defender's title plan. For some reason the evidence on this matter was largely confined to the period prior to 1980 and it was scant in the extreme. It is fairly clear, however, that prior to 1983, when a hard-bottomed road (the "east road") was first built by the first pursuer across his lands and between the two crofts, only four-wheel drive vehicles could progress beyond the ford and thereafter across open country "up past the fields". In addition, Mr. and Mrs. Bell gave evidence to the effect that occasionally taxis or other vehicles would cross the bridge before letting off occupants to make their way thereafter on foot to the defender's croft. Reference was made to the following dicta of Lord President Balfour in Moyes v McDiarmid 1900 2 F 918 at p. 922:

"The essence of a servitude of way to a farm, a mill, a peatmoss, or the like, is that the owner of the dominant tenement shall get convenient access to these places; the precise route is, or may probably be, immaterial, if it be reasonably convenient, and it is therefore intelligible that when the country began to be fenced and enclosed, on the introduction of modern methods of cultivation, the court should, in exercise of its inherent power to regulate rural praedial servitudes, have allowed undefined rights of way to be made definite by being confined to a particular track, or even, where they had been defined by use, have permitted them to be cast about, so as to substitute for them another track equally convenient."

On an application of certain of these dicta it is perhaps again theoretically possible that by 1993 an indiscriminate right of vehicular access had, as it were, crystallised on the road built in 1983. There was, however, no evidence to that effect and, in any event, there was no evidence that the line of the built road followed the line shown in the title plan. Again, the Lord Ordinary's findings on this matter are clearly against the appellant. At para. 114 of his Opinion he says this:

"There was no vehicular traffic to the defender's croft possible until 1983 upon the route now claimed by the defender. In 1980 and for many years before, the existing rights of access from the main road to the defender's croft were by vehicle as far as the ford, then on foot. That was the method used by Neil Campbell, William Campbell, the defender and her family. Between 1966 and 1988 the defender, her family and her predecessor in title only visited the croft occasionally and for holidays. After 1974 any vehicular or other access over the bridge was by permission of the pursuer. After 1983 any vehicular or other access over the east road was by similar permission."

[9] In so far as Mr. Johnston, Q.C., for the appellant, had any answer to the foregoing that answer rested on the general proposition that, having regard to what was ex facie the clear wording of the grant and the state of affairs on the ground at the time, one could somehow construe the 1980 grant as being a grant of access by a different line from that shown on the title plan and as including some form of vehicular access which went over the bridge and along the line of the road built in 1983. Whatever else, this line of argument clearly involves going outwith the four corners of the servitude grant with the onus being on the defender to justify a somewhat unusual approach to the construction of what is purportedly an express grant of a specific right of way. It is not a line of argument foreshadowed in the pleadings and it is unclear whether it was developed before the Lord Ordinary. As regards the matter of vehicular access, there is the additional complication that, as noted above, there was no evidence that the road built in 1983 followed the line of the track shown in the title plan, let alone that vehicles followed that line prior to the road being built. It must also be said that, in so far as the Lord Ordinary's findings referred to above are findings of mixed fact and law, to give effect to this approach would also involve overturning the Lord Ordinary on matters of fact, albeit Mr. Johnston expressly disavowed any such intention. For present purposes, however, it is perhaps sufficient to say that nothing said by Mr. Johnston in any way altered our view that in respect of the two matters discussed above there was clearly the possibility of a very stateable defence to the Sheriff Court action.

[10 ] In the third place, despite his general approach just summarised, Mr. Johnston accepted before the Lord Ordinary, and appeared to accept before us, that in at least one respect the line of the access route had been "varied" at some time following the original grant in 1980. The point where this had occurred was where the line of the access route left the ford and traversed an area of ground which was developed by the second pursuer as garden ground over a period following her marriage to the first pursuer in 1978. It is not entirely clear how this concession by Mr. Johnston, if it is properly to be viewed as such, squares with his more general approach. But, however that might be, it is, we think, obvious that any variation in the line of access as sought in the crave of the Initial Writ and thus overlooked by the Sheriff Court interlocutor would, of itself, have given rise to a defence to the action.

[11 ] The only other argument which Mr. Johnston put before us was based on the premise that what purported to be an express grant of servitude in the 1980 disposition had been shown to be wholly invalid with the result that his client could have recourse to the doctrine of "implied grant". According to Mr. Johnston an application of that doctrine would result in a line of vehicular access which went over the bridge, over the road built in 1983 and at the same time be so closely equivalent to what was granted by the Sheriff Court interlocutor as to obviate the need for reduction. In our opinion, however, this proposition is, to say the least, far-fetched. In the first place, it is difficult to see how the express grant is wholly invalid. Its terms may require expiscation or even correction but there is little doubt that some form of express grant was clearly intended. In the second place, it is very difficult to see how any implied line of access could conceivably be that desiderated by Mr. Johnston and at the same time consistent with the Sheriff Court interlocutor. As we have already noted, the line indicated by that interlocutor does not go over the bridge and there is no room, on this hypothesis, for that interlocutor to be construed other than ex facie of the terms of the Disposition and plan to which it refers. Lastly, we are quite unable to say that comfortable enjoyment of the defender's croft would of necessity have required a line of access (vehicular or otherwise) to pass over what is now the existing bridge. That bridge is directly in front of the pursuer's croft house and it is the invasion of privacy which that line involves that seems to have been the underlying cause for these most unfortunate proceedings. Any implied line would not, we think, have given rise to that difficulty. There is, of course, the further question as to whether vehicular access could be shown to have been a necessary part of any such grant. In this general connection we were told that in recent years the defender had refused offers by both the Estate Trustees and the pursuers to provide her with either an entirely different line of vehicular access to her croft or by a line which was in part that for which she contended but which would have crossed the burn over a differently sited bridge or culvert. We can only hope that if one or other of these offers is repeated, it will now be accepted.

[12 ] For all the foregoing reasons this reclaiming motion is refused.